1. Applicant's Name: a. Application Date: 26 October 2015 b. Date Received: 2 November 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, he would like an upgrade for the purpose of being able to attend college and provide for his family. He contends his discharge was based on one incident of misconduct and that he was never given a chance to attend rehab nor was he afforded a medical evaluation board. He is currently 100 percent disabled from injuries he received in combat in Iraq 22 August 2007. His disabilities include TBI, PTSD, Joint Disease, right knee injury, right shoulder injury, and a spinal injury. Since his discharge, the applicant has never been in trouble for any reason other than a traffic violation and due to his disabilities, he cannot hold down a full time job. Per the Board's Medical Officer, based on the information available for review at the time, the applicant was an infantryman in the 1st Air Cavalry Division wounded in Iraq in August 2007 by two separate IED explosions on the same day. Although iPERMS showed he earned both a Purple Heart and a Combat Infantry Badge neither his medal nor his CIB were entered on his DD-214. He has diagnoses made during his Army service that show him to have combat- related PTSD and to have had a combat-related traumatic brain injury. At the time of his discharge, his pre-discharge Mental Status Exam cleared him for administrative discharge; however, the examining psychologist also recommended a MEB. The psychologist also noted symptoms of passivity, anxiety, depression, and "fair" memory during this MSE. The applicant currently has 100 percent service-connected disability rating from the VA. He also has diagnoses that include post-concussion syndrome. In all, this applicant had many mental and physical problems. His AWOLs and possible efforts to soothe himself, as well as disobedience to his seniors are familiar pictures of a soldier with PTSD or TBI. The case for mitigation is extremely strong. Further, the recommendation by the psychologist for an MEB was defensible at the time it was made, based on the available clinical records. In a records review conducted at Arlington, VA on 8 March 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (i.e. combat wounded; medical officer at pre-discharge interview recommended MEB but failed to write the consult) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635-200, Chapter 14-12b, the narrative reason for separation to Pattern of Misconduct, the separation code to JKA, and the reentry code to RE-3. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200, Paragraph 14-12c(2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 11 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 January 2009 (2) Basis for Separation: The applicant was informed of the following reasons: received a CG Article 15 on 21 July 2008 for disrespect towards a noncommissioned officer; and, received a FG Article 15 on 11 December 2008 for two counts of AWOL and wrongful use of marijuana. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 January 2009 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 26 January 2009 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 January 2007 / 3 years and 16 weeks b. Age at Enlistment / Education / GT Score: 18 / GED / 92 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 2 years, 1 month, 9 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (18 July 2007 to 31 January 2008) f. Awards and Decorations: NDSM, ICM-CS, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 21 July 2008, for being disrespectful in language toward a noncommissioned officer (23 June 2008). The punishment consisted of a reduction to E-2 and forfeiture of $370 pay per month for one month (both suspended), and extra duty and restriction for 14 days. FG Article 15, dated 11 December 2008, for the wrongful use of marijuana (between 28 June 2008 and 28 July 2008), being absent from his unit (5 August 2008 to 8 August 2008 and from 10 September 2008 to 8 October 2008). The punishment consisted of a reduction to E-1, forfeiture of $673 pay per month for two months, and extra duty and restriction for 45 days. Four DA Forms 4187 reflect the applicant's duty status changed as follows: from "Present for Duty (PDY)" to "AWOL," effective 5 August 2008 from "AWOL" to "PDY," effective 8 August 2008 from "PDY" to "AWOL," effective 10 September 2008 from "AWOL" to "PDY," effective 8 October 2008 i. Lost Time / Mode of Return: None noted on DD Form 214; however, evidence in the record reflects 37 days of AWOL time (5 to 8 August 2008 and 10 September to 8 October 2008). j. Diagnosed PTSD / TBI / Behavioral Health: Report of Mental Status Evaluation, dated 18 December 2008, reflects the applicant met the retention standards prescribed in Chapter 3, AR 40-501, and there was no psychiatric disease or defect that warrant disposition through medical channels. The applicant was psychiatrically cleared for administrative proceedings. He was screened for PTSD and mTBI. Both were found, the applicant was DX of PTSD and post- concussion from combat, and recommended for MEB. 5. APPLICANT-PROVIDED EVIDENCE: Online application; Purple Heart support statement; Veterans Affairs letter indicating that the applicant is receiving 100 percent service-connected disability; and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c(2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." 8. DISCUSSION OF FACT(S): The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. Furthermore, by violating the Army's policy not to possess or use illegal drugs, the applicant compromised the trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on active duty. The applicant contends his discharge was based on one incident of misconduct and that he was never given a chance to attend rehab nor was he afforded a medical evaluation board. However, the service record indicates the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. After reviewing the applicant's discharge packet, it appears the separation authority properly waived the rehabilitative requirements. Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by the imposition of non-judicial punishment. The applicant failed to respond appropriately. The applicant contends he is currently 100 percent disabled from injuries he received in combat in Iraq 22 August 2007. His disabilities include TBI, PTSD, Joint Disease, right knee injury, right shoulder injury, and a spinal injury. The applicant's contentions were noted; evidence in the records reflect the applicant was diagnosed with PTSD and TBI prior to his discharge. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that on 18 December 2008, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong. It appears the applicant's chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong as indicated by the mental status evaluation. Further, there are many Soldiers with the same condition that completed their service successfully. Also, the fact the Veterans Administration has granted the applicant service connection for medical conditions the applicant suffered while on Active Duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing. The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels. The applicant contends that he had good service, which included being awarded the Purple Heart and the Army Commendation Medal (awards that were not found in his record). The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant contends that since his discharge, he has never been in trouble for any reason other than a traffic violation. The applicant's post-service accomplishments have been noted as outlined on the application and the applicant is to be commended on his accomplishments. The applicant desires an upgrade for the purpose of being able to attend college and provide for his family. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 March 2017, and by a 5-0 vote, the Board determined the discharge is inequitable. The Board found the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding his discharge (i.e. combat wounded; medical officer at pre-discharge interview recommended MEB but failed to write the consult) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and changes to the separation authority to AR 635- 200, Chapter 14-12b, the narrative reason for separation to Pattern of Misconduct, the separation code to JKA, and the reentry code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Pattern of Misconduct d. Change Authority to: AR 635-200, Chapter 14-12b e. Change SPD/RE Code to: Change SPD to JKA / Change to RE code to 3 f. Restore Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150017037 1